Election lawsuits examined

Korb, GOP cases face a long haul

The recent Indiana Court of Appeals ruling that inspired three lawsuits last week contesting Vanderburgh County election results flies against precedent and "may very well" be reversed by the Indiana Supreme Court, said a local attorney who has argued before the court.

Cole Banks, an Evansville attorney and political science instructor at the University of Southern Indiana, said case law does not support the Court of Appeals' Nov. 13 finding that Terre Haute Mayor Duke Bennett was ineligible to run for that office in 2007.

In the 2-to-1 opinion, the appeals court decided Bennett was prohibited from seeking office under a federal law limiting the political activities of people whose jobs are funded at least in part by federal money.

Bennett was director of operations from 2005 until 2007 at the Hamilton Center, a not-for-profit community behavioral health services center that operates a federally funded Head Start program.

"I believe the Supreme Court will revisit all the issues involved (on appeal) and may very well reach a different conclusion," Banks said. "The ruling is contrary to prior case law. The basic principle that the courts operate on is, 'Wait a minute, these people have voted. There has to be a really good reason to throw out their votes.'"

Courts' reluctance

Banks said state courts' traditional reluctance to overturn election results also should provide a stiff headwind against Republican County Commissioner Jeff Korb and the local GOP as they seek to reverse the election of Democrat Steve Melcher to Korb's seat and Ed Bassemier to an at-large County Council seat on the strength of similar claims.

In cases that Banks said will be watched by legal and political professionals across the state, Korb and the GOP separately seek hearings in Vanderburgh Circuit Court to declare Melcher and Bassemier disqualified from being candidates and ineligible to serve.

If successful, the three suits — one each by Korb and the GOP naming Melcher and one Republican suit naming Bassemier — would prevent the two Democrats from being sworn in on Jan. 1.

Nick Hermann, chairman of the Vanderburgh County Republican Party, did not return telephone messages seeking comment, and it is not known how the party is paying for its legal actions.

Foster said Korb's lawsuit was inspired by and modeled on the case filed by former Terre Haute Mayor Kevin Burke challenging Bennett's eligibility to run for mayor under the Little Hatch Act.

Little Hatch Act

While the Hatch Act applies to employees of federal agencies, the Little Hatch Act applies to employees of state and local agencies that receive federal funds.

The Little Hatch Act provides in part that, "[a] state or local officer or employee may not ... be a candidate for elective office." But Banks sees things in the three-member appeals court decision that the Supreme Court could seize upon to reverse the decision.

In a lengthy explanation of that case, the appeals court repeatedly cited the Supreme Court's finding that voters' ballots should not be discounted unless it can be shown that they were aware of a candidate's ineligibility and willfully disregarded it.

Support for Banks' argument can be found in the dissent filed by Appeals Court Judge Edward W. Najam, who also argued that the court disregarded the Oviatt case and other case law.

"For almost 150 years, our Supreme Court has consistently held that a successful post-election challenge cannot be maintained on the grounds of the winning candidate's ineligibility unless the voters knew of that ineligibility and wasted their votes accordingly," Najam wrote.

Bennett is continuing to serve as mayor pending an expected appeal by his attorneys to the Indiana Supreme Court.

Rob Faulkner, Melcher's attorney, said the case involving his client will be "a very fact-sensitive inquiry" involving precise parsings of Melcher's responsibilities as facilities manager for the Community Action Program of Evansville, a not-for-profit agency that runs a federally funded Head Start early childhood and health program.

Prior investigation

Melcher, a 17-year veteran of the City Council, said not only is he not involved with Head Start in any way, but he also was investigated for possible Little Hatch Act problems several years ago and was cleared.

Melcher described a comprehensive investigation of possible legal problems with his service on the City Council while working for CAPE, after which John Hamilton, attorney for the City Council, and then-City Attorney Larry Downs signed a letter "giving me a clean bill of health."

Downs did not recall the letter. Hamilton said the question involved possible conflicts of interest when issues related to CAPE come before the City Council, not Little Hatch Act issues.

Foster, Korb's attorney, has said the cases involving Bennett in Terre Haute and Melcher are "almost identical on the facts," but Foster said Friday that he hasn't done an extensive investigation of Melcher's job duties.

Bassemier has been safety director at Evansville Regional Airport since 2002.

Dianna Kissel, director of marketing for the airport, said no one other than reporters has contacted the airport to ascertain Bassemier's involvement with federally funded projects or the use of the money itself. He does not handle federal funds and has no authority over their use, Kissel said.